Tester's Border Patrol Agent Pay Reform Act

8/10/2019 Tester's Border Patrol Agent Pay Reform Act

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IC

113TH CONGRESS2D SESSION S. 1691

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 19, 2014

Referred to the Committee on Oversight and Government Reform, and in ad-

dition to the Committee on Homeland Security, for a period to be subse-

quently determined by the Speaker, in each case for consideration of such

provisions as fall within the jurisdiction of the committee concerned

AN ACT

To amend title 5, United States Code, to improve the secu-

rity of the United States border and to provide for

reforms and rates of pay for border patrol agents.

Be it enacted by the Senate and House of Representa-1

tives of the United States of America in Congress assembled,2

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SECTION 1. SHORT TITLE.1

This Act may be cited as the Border Patrol Agent2

Pay Reform Act of 2014.3

SEC. 2. BORDER PATROL RATE OF PAY.4

(a) PURPOSE.The purposes of this Act are5

(1) to strengthen U.S. Customs and Border6

Protection and ensure that border patrol agents are7

sufficiently ready to conduct necessary work and will8

perform overtime hours in excess of a 40-hour work-9

week based on the needs of U.S. Customs and Bor-10

der Protection; and11

(2) to ensure U.S. Customs and Border Protec-12

tion has the flexibility to cover shift changes and re-13

tains the right to assign scheduled and unscheduled14

work for mission requirements and planning based15

on operational need.16

(b) RATES OF PAY.Subchapter V of chapter 55 of17

title 5, United States Code, is amended by inserting after18

section 5549 the following:19

5550. Border patrol rate of pay20

(a) DEFINITIONS.In this section21

(1) the term basic border patrol rate of pay22

means the hourly rate of basic pay of the applicable23

border patrol, as determined without regard to this24

section;25



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(2) the term border patrol agent means an1

individual who is appointed to a position assigned to2

the Border Patrol Enforcement classification series3

1896 or any successor series, consistent with classi-4

fication standards established by the Office of Per-5

sonnel Management;6

(3) the term level 1 border patrol rate of pay7

means the hourly rate of pay equal to 1.25 times the8

otherwise applicable hourly rate of basic pay of the9

applicable border patrol agent;10

(4) the term level 2 border patrol rate of pay11

means the hourly rate of pay equal to 1.125 times12

the otherwise applicable hourly rate of basic pay of13

the applicable border patrol agent; and14

(5) the term work period means a 14-day bi-15

weekly pay period.16

(b) RECEIPT OF BORDER PATROL RATE OF PAY.17

(1) VOLUNTARY ELECTION.18

(A) IN GENERAL.Not later than 3019

days before the first day of each year beginning20

after the date of enactment of this section, a21

border patrol agent shall make an election22

whether the border patrol agent shall, for that23

year, be assigned to24



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(i) the level 1 border patrol rate of1

pay;2

(ii) the level 2 border patrol rate of3

pay; or4

(iii) the basic border patrol rate of5

pay, with additional overtime assigned as6

needed by U.S. Customs and Border Pro-7

tection.8

(B) REGULATIONS.The Director of the9

Office of Personnel Management shall promul-10

gate regulations establishing procedures for11

elections under subparagraph (A).12

(C) INFORMATION REGARDING ELEC-13

TION.Not later than 60 days before the first14

day of each year beginning after the date of en-15

actment of this section, U.S. Customs and Bor-16

der Protection shall provide each border patrol17

agent with information regarding each type of18

election available under subparagraph (A) and19

how to make such an election.20

(D) ASSIGNMENT IN LIEU OF ELEC-21

TION.Notwithstanding subparagraph (A)22

(i) a border patrol agent who fails to23

make a timely election under subparagraph24



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(A) shall be assigned to the level 1 border1

patrol rate of pay;2

(ii) a border patrol agent who is as-3

signed a canine shall be assigned to the4

level 1 border patrol rate of pay;5

(iii) if at any time U.S. Customs and6

Border Protection concludes that a border7

patrol agent is unable to perform overtime8

on a daily basis in accordance with this9

section, U.S. Customs and Border Protec-10

tion shall assign the border patrol agent to11

the basic border patrol rate of pay until12

such time as U.S. Customs and Border13

Protection determines that the border pa-14

trol agent is able to perform scheduled15

overtime on a daily basis;16

(iv) unless the analysis conducted17

under section 2(e) of the Border Patrol18

Agent Pay Reform Act of 2014 indicates19

that, in order to more adequately fulfill the20

operational requirements of U.S. Customs21

and Border Protection, such border patrol22

agents should be allowed to elect or be as-23

signed to the level 1 border patrol rate of24

pay or the level 2 border patrol rate of25



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pay, a border patrol agent shall be as-1

signed to the basic border patrol rate of2

pay if the agent works3

(I) at U.S. Customs and Border4

Protection headquarters;5

(II) as a training instructor at a6

U.S. Customs and Border Protection7

training facility;8

(III) in an administrative posi-9

tion; or10

(IV) as a fitness instructor; and11

(v) a border patrol agent may be as-12

signed to the level 1 border patrol rate of13

pay or the level 2 border patrol rate of pay14

in accordance with subparagraph (E).15

(E) FLEXIBILITY.16

(i) IN GENERAL.Except as pro-17

vided in clauses (ii) and (iii), and notwith-18

standing any other provision of law, U.S.19

Customs and Border Protection shall take20

such action as is necessary, including the21

unilateral assignment of border patrol22

agents to the level 1 border patrol rate of23

pay or the level 2 border patrol rate of24

pay, to ensure that not more than 10 per-25



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cent of the border patrol agents stationed1

at a location are assigned to the level 22

border patrol rate of pay or the basic bor-3

der patrol rate of pay.4

(ii) WAIVER.U.S. Customs and5

Border Protection may waive the limitation6

under clause (i) on the percent of border7

patrol agents stationed at a location who8

are assigned to the level 2 border patrol9

rate of pay or the basic border patrol rate10

of pay if, based on the analysis conducted11

under section 2(e) of the Border Patrol12

Agent Pay Reform Act of 2014, U.S. Cus-13

toms and Border Protection determines it14

may do so and adequately fulfill its oper-15

ational requirements.16

(iii) CERTAIN LOCATIONS.Clause17

(i) shall not apply to border patrol agents18

working at the headquarters of U.S. Cus-19

toms and Border Protection or a training20

location of U.S. Customs and Border Pro-21

tection.22

(F) CANINE CARE.For a border patrol23

agent assigned to provide care for a canine and24



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assigned to the level 1 border patrol rate of pay1

in accordance with subparagraph (D)(ii)2

(i) that rate of pay covers all such3

care;4

(ii) for the purposes of scheduled5

overtime under paragraph (2)(A)(ii), such6

care shall be counted as 1 hour of sched-7

uled overtime on each regular workday8

without regard to the actual duration of9

such care or whether such care occurs on10

the regular workday; and11

(iii) no other pay shall be paid to the12

border patrol agent for such care.13

(G) PAY ASSIGNMENT CONTINUITY.14

(i) IN GENERAL.Not later than 115

year after the date of enactment of the16

Border Patrol Agent Pay Reform Act of17

2014, and in consultation with the Office18

of Personnel Management, U.S. Customs19

and Border Protection shall develop and20

implement a plan to ensure, to the greatest21

extent practicable, that the assignment of22

a border patrol agent under this section23

during the 3 years of service before the24

border patrol agent becomes eligible for25



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immediate retirement are consistent with1

the average border patrol rate of pay level2

to which the border patrol agent has been3

assigned during the course of the career of4

the border patrol agent.5

(ii) IMPLEMENTATION.Notwith-6

standing any other provision of law, U.S.7

Customs and Border Protection may take8

such action as is necessary, including the9

unilateral assignment of border patrol10

agents to the level 1 border patrol rate of11

pay, the level 2 border patrol rate of pay,12

or the basic border patrol rate of pay, to13

implement the plan developed under this14

subparagraph.15

(iii) REPORTING.U.S. Customs16

and Border Protection shall submit the17

plan developed under clause (i) to the ap-18

propriate committees of Congress.19

(iv) GAO REVIEW.Not later than 620

months after U.S. Customs and Border21

Protection issues the plan required under22

clause (i), the Comptroller General of the23

United States shall submit to the appro-24

priate committees of Congress a report on25



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the effectiveness of the plan in ensuring1

that border patrol agents are not able to2

artificially enhance their retirement annu-3

ities.4

(v) DEFINITION.In this subpara-5

graph, the term appropriate committees of6

Congress means7

(I) the Committee on Homeland8

Security and Governmental Affairs9

and the Committee on Appropriations10

of the Senate; and11

(II) the Committee on Home-12

land Security, the Committee on13

Oversight and Government Reform,14

and the Committee on Appropriations15

of the House of Representatives.16

(vi) RULE OF CONSTRUCTION.17

Nothing in this subparagraph shall be con-18

strued to limit the ability of U.S. Customs19

and Border Protection to assign border pa-20

trol agents to border patrol rates of pay as21

necessary to meet operational require-22

ments.23



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(2) LEVEL 1 BORDER PATROL RATE OF PAY.1

For a border patrol agent who is assigned to the2

level 1 border patrol rate of pay3

(A) the border patrol agent shall have a4

regular tour of duty consisting of 5 workdays5

per week with6

(i) 8 hours of regular time per work-7

day, which may be interrupted by an un-8

paid off-duty meal break; and9

(ii) 2 additional hours of scheduled10

overtime during each day the agent per-11

forms work under clause (i);12

(B) for paid hours of regular time de-13

scribed in subparagraph (A)(i), the border pa-14

trol agent shall receive pay at the level 1 border15


(C) compensation for the hours of regu-17

larly scheduled overtime work described in sub-18

paragraph (A)(ii) is provided indirectly through19

the 25 percent supplement within the level 120

border patrol rate of pay, and the border patrol21

agent may not receive for such hours22

(i) any compensation in addition to23

the compensation under subparagraph (B)24



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under this section or any other provision of1

law; or2

(ii) any compensatory time off;3

(D) the border patrol agent shall receive4

compensatory time off or pay at the overtime5

hourly rate of pay for hours of work in excess6

of 100 hours during a work period, as deter-7

mined in accordance with section 5542(g);8

(E) the border patrol agent shall be9

charged corresponding amounts of paid leave,10

compensatory time off, or other paid time off11

for each hour (or part thereof) the agent is ab-12

sent from work during regular time (except that13

full days off for military leave shall be charged14

when required);15

(F) if the border patrol agent is absent16

during scheduled overtime described in subpara-17

graph (A)(ii)18

(i) the border patrol agent shall ac-19

crue an obligation to perform other over-20

time work for each hour (or part thereof)21

the border patrol agent is absent; and22

(ii) any overtime work applied to-23

ward the obligation under clause (i) shall24



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not be credited as overtime work under1

any other provision of law; and2

(G) for the purposes of advanced train-3

ing, the border patrol agent4

(i) shall be paid at the level 1 border5

patrol rate of pay for the first 60 days of6

advanced training in a calendar year; and7

(ii) for any advanced training in ad-8

dition to the advanced training described9

in clause (i), shall be paid at the basic bor-10


(3) LEVEL 2 BORDER PATROL RATE OF PAY.12


level 2 border patrol rate of pay14



per week with17

(i) 8 hours of regular time per work-18

day, which may be interrupted by an un-19

paid off-duty meal break; and20

(ii) 1 additional hour of scheduled21

overtime during each day the agent per-22

forms work under clause (i);23

(B) for paid hours of regular time de-24

scribed in subparagraph (A)(i), the border pa-25



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trol agent shall receive pay at the level 2 border1


(C) compensation for the hours of regu-3

larly scheduled overtime work described in sub-4

paragraph (A)(ii) is provided indirectly through5

the 12.5 percent supplement within the level 26

border patrol rate of pay, and the border patrol7

agent may not receive for such hours8

(i) any compensation in addition to9

the compensation under subparagraph (B)10

under this section or any other provision of11

law; or12

(ii) any compensatory time off;13

(D) the border patrol agent shall receive14




mined in accordance with section 5542(g);18

(E) the border patrol agent shall be19

charged corresponding amounts of paid leave,20

compensatory time off, or other paid time off21

for each hour (or part thereof) the agent is ex-22

cused from work during regular time (except23

that full days off for military leave shall be24

charged when required);25



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(F) if the border patrol agent is absent1

during scheduled overtime described in subpara-2

graph (A)(ii)3

(i) the border patrol agent shall ac-4

crue an obligation to perform other over-5

time work for each hour (or part thereof)6

the border patrol agent is absent; and7

(ii) any overtime work applied to-8

ward the obligation under clause (i) shall9

not be credited as overtime work under10

any other provision of law; and11

(G) for the purposes of advanced train-12

ing, the border patrol agent13

(i) shall be paid at the level 2 border14

patrol rate of pay for the first 60 days of15

advanced training in a calendar year; and16

(ii) for any advanced training in ad-17

dition to the advanced training described18

in clause (i), shall be paid at the basic bor-19


(4) BASIC BORDER PATROL RATE OF PAY.21


basic border patrol rate of pay23





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per week with 8 hours of regular time per work-1

day; and2

(B) the border patrol agent shall receive3




mined in accordance with section 5542(g).7

(c) ELIGIBILITY FOR OTHER PREMIUM PAY.A8

border patrol agent9

(1) shall receive premium pay for nightwork in10

accordance with subsections (a) and (b) of section11

5545 and Sunday and holiday pay in accordance12

with section 5546, without regard to the rate of pay13

to which the border patrol agent is assigned under14

this section, except that15

(A) no premium pay for night, Sunday,16

or holiday work shall be provided for hours of17

regularly scheduled overtime work described in18

paragraph (2)(A)(ii) or (3)(A)(ii) of subsection19

(b), consistent with the requirements of para-20

graph (2)(C) or (3)(C) of subsection (b); and21

(B) section 5546(d) shall not apply and22

instead eligibility for pay for, and the rate of23

pay for, any overtime work on a Sunday or a24



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designated holiday shall be determined in ac-1

cordance with this section and section 5542(g);2

(2) except as provided in paragraph (3) or sec-3

tion 5542(g), shall not be eligible for any other form4

of premium pay under this title; and5

(3) shall be eligible for hazardous duty pay in6

accordance with section 5545(d).7

(d) TREATMENT AS BASIC PAY.Any pay in addi-8

tion to the basic border patrol rate of pay for a border9

patrol agent resulting from application of the level 1 bor-10

der patrol rate of pay or the level 2 border patrol rate11

of pay12

(1) subject to paragraph (2), shall be treated13

as part of basic pay solely for14

(A) purposes of sections 5595(c),15

8114(e), 8331(3)(I), and 8704(c);16

(B) any other purpose that the Director17

of the Office of Personnel Management may by18

regulation prescribe; and19

(C) any other purpose expressly provided20

for by law; and21

(2) shall not be treated as part of basic pay22

for the purposes of calculating overtime pay, night23

pay, Sunday pay, or holiday pay under section 5542,24

5545, or 5546.25



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(e) TRAVEL TIME.Travel time to and from home1

and duty station by a border patrol agent shall not be con-2

sidered hours of work under any provision of law.3

(f) LEAVE WITHOUT PAY AND SUBSTITUTION OF4

HOURS.5

(1) REGULAR TIME.6

(A) IN GENERAL.For a period of leave7

without pay during the regular time of a border8

patrol agent (as described in paragraph9

(2)(A)(i), (3)(A)(i), or (4)(A) of subsection (b))10

within a work period, an equal period of work11

outside the regular time of the border patrol12

agent, but in the same work period13

(i) shall be substituted and paid for14

at the rate applicable for the regular time;15

and16

(ii) shall not be credited as overtime17

hours for any purpose.18

(B) PRIORITY FOR SAME DAY WORK.In19

substituting hours of work under subparagraph20

(A), work performed on the same day as the pe-21

riod of leave without pay shall be substituted22

first.23

(C) PRIORITY FOR REGULAR TIME SUB-24

STITUTION.Hours of work shall be sub-25



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stituted for regular time work under this para-1

graph before being substituted for scheduled2

overtime under paragraphs (2), (3), and (4).3

(2) OVERTIME WORK.4

(A) IN GENERAL.For a period of ab-5

sence during scheduled overtime (as described6

in paragraph (2)(F) or (3)(F) of subsection7

(b)) within a work period, an equal period of8

additional work in the same work period9

(i) shall be substituted and credited10

as scheduled overtime; and11

(ii) shall not be credited as overtime12

hours under any other provision of law.13

(B) PRIORITY FOR SAME DAY WORK.In14

substituting hours of work under subparagraph15

(A), work performed on the same day as the pe-16

riod of absence shall be substituted first.17

(3) APPLICATION OF COMPENSATORY TIME.18

If a border patrol agent does not have sufficient ad-19

ditional work in a work period to substitute for all20

periods of absence during scheduled overtime (as de-21

scribed in paragraph (2)(F) or (3)(F) of subsection22

(b)) within that work period, any accrued compen-23

satory time off under section 5542(g) shall be ap-24

plied to satisfy the hours obligation.25



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(4) INSUFFICIENT HOURS.If a border patrol1

agent has a remaining hours obligation of scheduled2

overtime after applying paragraphs (2) and (3), any3

additional work in subsequent work periods that4

would otherwise be credited under section 5542(g)5

shall be applied towards the hours obligation until6

that obligation is satisfied.7

(g) AUTHORITY TO REQUIRE OVERTIME WORK.8

Nothing in this section shall be construed to limit the au-9

thority of U.S. Customs and Border Protection to require10

a border patrol agent to perform hours of overtime work11

in accordance with the needs of U.S. Customs and Border12

Protection, including if needed in the event of a local or13

national emergency..14

(c) OVERTIMEWORK.15

(1) IN GENERAL.Section 5542 of title 5,16

United States Code, is amended by adding at the17

end the following:18

(g) In applying subsection (a) with respect to a bor-19

der patrol agent covered by section 5550, the following20

rules apply:21

(1) Notwithstanding the matter preceding22

paragraph (1) in subsection (a), for a border patrol23

agent who is assigned to the level 1 border patrol24

rate of pay under section 555025



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(A) hours of work in excess of 100 hours1

during a 14-day biweekly pay period shall be2

overtime work; and3

(B) the border patrol agent4

(i) shall receive pay at the overtime5

hourly rate of pay (as determined in ac-6

cordance with paragraphs (1) and (2) of7

subsection (a)) for hours of overtime work8

that are officially ordered or approved in9

advance of the workweek; and10

(ii) except as provided in paragraphs11

(4) and (5), shall receive compensatory12

time off for an equal amount of time spent13

performing overtime work that is not over-14

time work described in clause (i).15



agent who is assigned to the level 2 border patrol18

rate of pay under section 555019



overtime work; and22






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agent who is assigned to the basic border patrol rate12

of pay under section 555013



overtime work; and16












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(4)(A) Except as provided in subparagraph4

(B), during a 14-day biweekly pay period, a border5

patrol agent may not earn compensatory time off for6

more than 10 hours of overtime work.7

(B) U.S. Customs and Border Protection may,8

as it determines appropriate, waive the limitation9

under subparagraph (A) for an individual border pa-10

trol agent for hours of irregular or occasional over-11

time work, but such waiver must be approved in12

writing in advance of the performance of any such13

work for which compensatory time off is earned14

under paragraph (1)(B)(ii), (2)(B)(ii), or (3)(B)(ii).15

If a waiver request by a border patrol agent is de-16

nied, the border patrol agent may not be ordered to17

perform the associated overtime work.18

(5) A border patrol agent19

(A) may not earn more than 240 hours of20

compensatory time off during a leave year;21

(B) shall use any hours of compensatory22

time off not later than the end of the 26th pay23

period after the pay period during which the24

compensatory time off was earned;25



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(C) shall be required to use 1 hour of1

compensatory time off for each hour of regular2

time not worked for which the border patrol3

agent is not on paid leave or other paid time off4

or does not substitute time in accordance with5

section 5550(f);6

(D) shall forfeit any compensatory time7

off not used in accordance with this paragraph8

and, regardless of circumstances, shall not be9

entitled to any cash value for compensatory10

time earned under section 5550;11

(E) shall not receive credit towards the12

computation of the annuity of the border patrol13

agent for compensatory time, whether used or14

not; and15

(F) shall not be credited with compen-16

satory time off if the value of such time off17

would cause the aggregate premium pay of the18

border patrol agent to exceed the limitation es-19

tablished under section 5547 in the period in20

which it was earned..21

(2) MINIMIZATION OF OVERTIME.U.S. Cus-22

toms and Border Protection shall, to the maximum23

extent practicable, avoid the use of scheduled over-24

time work by border patrol agents.25



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(d) RETIREMENT.Section 8331(3) of title 5, United1

States Code, is amended2

(1) in subparagraph (G), by striking and;3

(2) in subparagraph (H), by inserting and4

after the semicolon;5

(3) by inserting a new subparagraph after sub-6

paragraph (H) as follows:7

(I) with respect to a border pa-8

trol agent, the amount of supple-9

mental pay received through applica-10

tion of the level 1 border patrol rate11

of pay or the level 2 border patrol12

rate of pay for scheduled overtime13

within the regular tour of duty of the14

border patrol agent as provided in15

section 5550;; and16

(4) in the undesignated matter following sub-17

paragraph (H), by striking subparagraphs (B)18

through (H) and inserting subparagraphs (B)19

through (I).20

(e) COMPREHENSIVE STAFFINGANALYSIS.21

(1) IN GENERAL.Not later than 1 year after22

the date of enactment of this Act, U.S. Customs and23

Border Protection shall conduct a comprehensive24



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analysis, and submit to the Comptroller General of1

the United States a report, that2

(A) examines the staffing requirements for3

U.S. Border Patrol to most effectively meet its4

operational requirements at each Border Patrol5

duty station;6

(B) estimates the cost of the staffing re-7

quirements at each Border Patrol duty station;8

and9

(C) includes10

(i) a position-by-position review at11

each Border Patrol station to determine12

(I) the duties assigned to each13

position;14

(II) how the duties relate to the15

operational requirements of U.S. Bor-16

der Patrol; and17

(III) the number of hours border18

patrol agents in that position would19

need to work each pay period to meet20

the operational requirements of U.S.21

Border Patrol;22

(ii) the metrics used to determine the23

number of hours of work performed at24



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each Border Patrol station, broken down1

by the type of hours worked;2

(iii) a cost analysis of the most recent3

full fiscal year by the type of full-time4

equivalent hours worked;5

(iv) a cost estimate by the type of full-6

time equivalent hours expected to be7

worked during the first full fiscal year8

after the date of enactment of this Act;9

and10

(v) an analysis that compares the cost11

of assigning the full-time equivalent hours12

needed to meet the operational require-13

ments of U.S. Border Patrol to existing14

border patrol agents through higher rates15

of pay versus recruiting, hiring, training,16

and deploying additional border patrol17

agents.18

(2) INDEPENDENT VALIDATOR.Not later than19

90 days after the date on which the Comptroller20

General receives the report under paragraph (1), the21

Comptroller General shall submit to the appropriate22

committees of Congress a report that23



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(A) examines the methodology used by1

U.S. Customs and Border Protection to carry2

out the analysis; and3

(B) indicates whether the Comptroller4

General concurs with the findings in the report5

under paragraph (1).6

(3) DEFINITION.In this subsection, the term7

appropriate committees of Congress means8

(A) the Committee on Homeland Security9

and Governmental Affairs and the Committee10

on Appropriations of the Senate; and11

(B) the Committee on Oversight and Gov-12

ernment Reform and the Committee on Appro-13

priations of the House of Representatives.14

(f) RULES OF CONSTRUCTION.Nothing in this sec-15

tion or the amendments made by this section shall be con-16

strued to17

(1) limit the right of U.S. Customs and Border18

Protection to assign both scheduled and unscheduled19

work to a border patrol agent based on the needs of20

U.S. Customs and Border Protection in excess of the21

hours of work normally applicable under the election22

of the border patrol agent, regardless of what the23

border patrol agent might otherwise have elected;24



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(2) require compensation of a border patrol1

agent other than for hours during which the border2

patrol agent is actually performing work or using3

approved paid leave or other paid time off; or4

(3) exempt a border patrol agent from any limi-5

tations on pay, earnings, or compensation, including6

the limitations under section 5547 of title 5, United7

States Code.8

(g) TECHNICAL AND CONFORMING AMENDMENTS.9

(1) Section 5547 of title 5, United States Code10

is amended by11

(A) in subsection (a), in the matter pre-12

ceding paragraph (1)13

(i) by striking, and before 5546;14

and15

(ii) by inserting , and 5550 after16

5546 (a) and (b); and17

(B) by adding at the end the following:18

(e) Any supplemental pay resulting from receipt of19

the level 1 border patrol rate of pay or the level 2 border20

patrol rate of pay under section 5550 shall be considered21

premium pay in applying this section..22

(2) Section 13(a) of the Fair Labor Standards23

Act of 1938 (29 U.S.C. 213(a)) is amended24



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(A) in paragraph (16), by striking or1

after the semicolon;2

(B) in paragraph (17), by striking the pe-3

riod at the end and inserting ; or; and4

(C) by adding at the end the following:5

(18) any employee who is a border patrol6

agent, as defined in section 5550(a) of title 5,7

United States Code..8

(3) The table of sections for chapter 55 of title9

5, United States Code, is amended by inserting after10

the item relating to section 5549 the following:11

5550. Border patrol rate of pay..

(h) REGULATIONS.The Director of the Office of12

Personnel Management shall promulgate regulations to13

carry out this Act and the amendments made by this Act.14

SEC. 3. CYBERSECURITY RECRUITMENT AND RETENTION.15

(a) IN GENERAL.At the end of subtitle C of title16

II of the Homeland Security Act of 2002 (6 U.S.C. 14117

et seq.), add the following:18

SEC. 226. CYBERSECURITY RECRUITMENT AND RETEN-19

TION.20

(a) DEFINITIONS.In this section:21

(1) APPROPRIATE COMMITTEES OF CON-22

GRESS.The term appropriate committees of Con-23

gress means the Committee on Homeland Security24

and Governmental Affairs and the Committee on25



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Appropriations of the Senate and the Committee on1

Homeland Security and the Committee on Appro-2

priations of the House of Representatives.3

(2) COLLECTIVE BARGAINING AGREEMENT.4

The term collective bargaining agreement has the5

meaning given that term in section 7103(a)(8) of6

title 5, United States Code.7

(3) EXCEPTED SERVICE.The term excepted8

service has the meaning given that term in section9

2103 of title 5, United States Code.10

(4) PREFERENCE ELIGIBLE.The term pref-11

erence eligible has the meaning given that term in12

section 2108 of title 5, United States Code.13

(5) QUALIFIED POSITION.The term quali-14

fied position means a position, designated by the15

Secretary for the purpose of this section, in which16

the incumbent performs, manages, or supervises17

functions that execute the responsibilities of the De-18

partment relating to cybersecurity.19

(6) SENIOR EXECUTIVE SERVICE.The term20

Senior Executive Service has the meaning given21

that term in section 2101a of title 5, United States22

Code.23

(b) GENERALAUTHORITY.24



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(1) ESTABLISH POSITIONS, APPOINT PER-1

SONNEL, AND FIX RATES OF PAY.2

(A) GENERAL AUTHORITY.The Sec-3

retary may4

(i) establish, as positions in the ex-5

cepted service, such qualified positions in6

the Department as the Secretary deter-7

mines necessary to carry out the respon-8

sibilities of the Department relating to cy-9

bersecurity, including positions formerly10

identified as11

(I) senior level positions des-12

ignated under section 5376 of title 5,13

United States Code; and14

(II) positions in the Senior Ex-15

ecutive Service;16

(ii) appoint an individual to a quali-17

fied position (after taking into consider-18

ation the availability of preference eligibles19

for appointment to the position); and20

(iii) subject to the requirements of21

paragraphs (2) and (3), fix the compensa-22

tion of an individual for service in a quali-23

fied position.24



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(B) CONSTRUCTION WITH OTHER1

LAWS.The authority of the Secretary under2

this subsection applies without regard to the3

provisions of any other law relating to the ap-4

pointment, number, classification, or compensa-5

tion of employees.6

(2) BASIC PAY.7

(A) AUTHORITY TO FIX RATES OF BASIC8

PAY.In accordance with this section, the Sec-9

retary shall fix the rates of basic pay for any10

qualified position established under paragraph11

(1) in relation to the rates of pay provided for12

employees in comparable positions in the De-13

partment of Defense and subject to the same14

limitations on maximum rates of pay estab-15

lished for such employees by law or regulation.16

(B) PREVAILING RATE SYSTEMS.The17

Secretary may, consistent with section 5341 of18

title 5, United States Code, adopt such provi-19

sions of that title as provide for prevailing rate20

systems of basic pay and may apply those pro-21

visions to qualified positions for employees in or22

under which the Department may employ indi-23

viduals described by section 5342(a)(2)(A) of24

that title.25



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(3) ADDITIONAL COMPENSATION, INCENTIVES,1

AND ALLOWANCES.2

(A) ADDITIONAL COMPENSATION BASED3

ON TITLE 5 AUTHORITIES.The Secretary may4

provide employees in qualified positions com-5

pensation (in addition to basic pay), including6

benefits, incentives, and allowances, consistent7

with, and not in excess of the level authorized8

for, comparable positions authorized by title 5,9

United States Code.10

(B) ALLOWANCES IN NONFOREIGN11

AREAS.An employee in a qualified position12

whose rate of basic pay is fixed under para-13

graph (2)(A) shall be eligible for an allowance14

under section 5941 of title 5, United States15

Code, on the same basis and to the same extent16

as if the employee was an employee covered by17

such section 5941, including eligibility condi-18

tions, allowance rates, and all other terms and19

conditions in law or regulation.20

(4) PLAN FOR EXECUTION OF AUTHORI-21

TIES.Not later than 120 days after the date of en-22

actment of this section, the Secretary shall submit a23

report to the appropriate committees of Congress24



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with a plan for the use of the authorities provided1

under this subsection.2

(5) COLLECTIVE BARGAINING AGREEMENTS.3

Nothing in paragraph (1) may be construed to im-4

pair the continued effectiveness of a collective bar-5

gaining agreement with respect to an office, compo-6

nent, subcomponent, or equivalent of the Depart-7

ment that is a successor to an office, component,8

subcomponent, or equivalent of the Department cov-9

ered by the agreement before the succession.10

(6) REQUIRED REGULATIONS.The Secretary,11

in coordination with the Director of the Office of12

Personnel Management, shall prescribe regulations13

for the administration of this section.14

(c) ANNUAL REPORT.Not later than 1 year after15

the date of enactment of this section, and every year there-16

after for 4 years, the Secretary shall submit to the appro-17

priate committees of Congress a detailed report that18

(1) discusses the process used by the Sec-19

retary in accepting applications, assessing can-20

didates, ensuring adherence to veterans preference,21

and selecting applicants for vacancies to be filled by22

an individual for a qualified position;23

(2) describes24



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(A) how the Secretary plans to fulfill the1

critical need of the Department to recruit and2

retain employees in qualified positions;3

(B) the measures that will be used to4

measure progress; and5

(C) any actions taken during the report-6

ing period to fulfill such critical need;7

(3) discusses how the planning and actions8

taken under paragraph (2) are integrated into the9

strategic workforce planning of the Department;10

(4) provides metrics on actions occurring dur-11

ing the reporting period, including12

(A) the number of employees in qualified13

positions hired by occupation and grade and14

level or pay band;15

(B) the placement of employees in quali-16

fied positions by directorate and office within17

the Department;18

(C) the total number of veterans hired;19

(D) the number of separations of employ-20

ees in qualified positions by occupation and21

grade and level or pay band;22

(E) the number of retirements of employ-23

ees in qualified positions by occupation and24

grade and level or pay band; and25



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(F) the number and amounts of recruit-1

ment, relocation, and retention incentives paid2

to employees in qualified positions by occupa-3

tion and grade and level or pay band; and4

(5) describes the training provided to super-5

visors of employees in qualified positions at the De-6

partment on the use of the new authorities.7

(d) THREE-YEAR PROBATIONARY PERIOD.The8

probationary period for all employees hired under the au-9

thority established in this section shall be 3 years.10

(e) INCUMBENTS OF EXISTING COMPETITIVE SERV-11

ICE POSITIONS.12

(1) IN GENERAL.An individual serving in a13

position on the date of enactment of this section14

that is selected to be converted to a position in the15

excepted service under this section shall have the16

right to refuse such conversion.17

(2) SUBSEQUENT CONVERSION.After the18

date on which an individual who refuses a conversion19

under paragraph (1) stops serving in the position se-20

lected to be converted, the position may be converted21

to a position in the excepted service.22

(f) STUDY AND REPORT.Not later than 120 days23

after the date of enactment of this section, the National24

Protection and Programs Directorate shall submit a re-25



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port regarding the availability of, and benefits (including1

cost savings and security) of using, cybersecurity per-2

sonnel and facilities outside of the National Capital Re-3

gion (as defined in section 2674 of title 10, United States4

Code) to serve the Federal and national need to5

(1) the Subcommittee on Homeland Security6

of the Committee on Appropriations and the Com-7

mittee on Homeland Security and Governmental Af-8

fairs of the Senate; and9

(2) the Subcommittee on Homeland Security10

of the Committee on Appropriations and the Com-11

mittee on Homeland Security of the House of Rep-12

resentatives..13

(b) CONFORMING AMENDMENT.Section 3132(a)(2)14

of title 5, United States Code, is amended in the matter15

following subparagraph (E)16

(1) in clause (i), by striking or at the end;17

(2) in clause (ii), by inserting or after the18

semicolon; and19

(3) by inserting after clause (ii) the following:20

(iii) any position established as a qualified po-21

sition in the excepted service by the Secretary of22

Homeland Security under section 226 of the Home-23

land Security Act of 2002;.24



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(c) TABLE OF CONTENTS AMENDMENT.The table1

of contents in section 1(b) of the Homeland Security Act2

of 2002 (6 U.S.C. 101 et seq.) is amended by inserting3

after the item relating to section 225 the following:4

Sec. 226. Cybersecurity recruitment and retention..

SEC. 4. HOMELAND SECURITY CYBERSECURITY WORK-5

FORCE ASSESSMENT.6

(a) SHORT TITLE.This section may be cited as the7

Homeland Security Cybersecurity Workforce Assessment8

Act.9

(b) DEFINITIONS.In this section:10

(1) APPROPRIATE CONGRESSIONAL COMMIT-11

TEES.The term appropriate congressional com-12

mittees means13

(A) the Committee on Homeland Security14

and Governmental Affairs of the Senate;15

(B) the Committee on Homeland Security16

of the House of Representatives; and17

(C) the Committee on House Administra-18

tion of the House of Representatives.19

(2) CYBERSECURITY WORK CATEGORY; DATA20

ELEMENT CODE; SPECIALTY AREA.The terms Cy-21

bersecurity Work Category, Data Element Code,22

and Specialty Area have the meanings given such23

terms in the Office of Personnel Managements24

Guide to Data Standards.25



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(3) DEPARTMENT.The term Department1

means the Department of Homeland Security.2

(4) DIRECTOR.The term Director means3

the Director of the Office of Personnel Management.4

(5) SECRETARY.The term Secretary means5

the Secretary of Homeland Security.6

(c) NATIONAL CYBERSECURITYWORKFORCE MEAS-7

UREMENT INITIATIVE.8

(1) IN GENERAL.The Secretary shall9

(A) identify all cybersecurity workforce po-10

sitions within the Department;11

(B) determine the primary Cybersecurity12

Work Category and Specialty Area of such posi-13

tions; and14

(C) assign the corresponding Data Ele-15

ment Code, as set forth in the Office of Per-16

sonnel Managements Guide to Data Standards17

which is aligned with the National Initiative for18

Cybersecurity Educations National Cybersecu-19

rity Workforce Framework report, in accord-20

ance with paragraph (2).21

(2) EMPLOYMENT CODES.22

(A) PROCEDURES.Not later than 9023

days after the date of the enactment of this24

Act, the Secretary shall establish procedures25



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(i) to identify open positions that in-1

clude cybersecurity functions (as defined in2

the OPM Guide to Data Standards); and3

(ii) to assign the appropriate employ-4

ment code to each such position, using5

agreed standards and definitions.6

(B) CODE ASSIGNMENTS.Not later than7

9 months after the date of the enactment of8

this Act, the Secretary shall assign the appro-9

priate employment code to10

(i) each employee within the Depart-11

ment who carries out cybersecurity func-12

tions; and13

(ii) each open position within the De-14

partment that have been identified as hav-15

ing cybersecurity functions.16

(3) PROGRESS REPORT.Not later than 1 year17

after the date of the enactment of this Act, the Di-18

rector shall submit a progress report on the imple-19

mentation of this subsection to the appropriate con-20

gressional committees.21

(d) IDENTIFICATION OF CYBERSECURITY SPECIALTY22

AREAS OF CRITICAL NEED.23

(1) IN GENERAL.Beginning not later than 124

year after the date on which the employment codes25



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are assigned to employees pursuant to subsection1

(c)(2)(B), and annually through 2021, the Sec-2

retary, in consultation with the Director, shall3

(A) identify Cybersecurity Work Categories4

and Specialty Areas of critical need in the De-5

partments cybersecurity workforce; and6

(B) submit a report to the Director that7

(i) describes the Cybersecurity Work8

Categories and Specialty Areas identified9

under subparagraph (A); and10

(ii) substantiates the critical need des-11

ignations.12

(2) GUIDANCE.The Director shall provide the13

Secretary with timely guidance for identifying Cy-14

bersecurity Work Categories and Specialty Areas of15

critical need, including16

(A) current Cybersecurity Work Categories17

and Specialty Areas with acute skill shortages;18

and19

(B) Cybersecurity Work Categories and20

Specialty Areas with emerging skill shortages.21

(3) CYBERSECURITY CRITICAL NEEDS RE-22

PORT.Not later than 18 months after the date of23

the enactment of this Act, the Secretary, in con-24

sultation with the Director, shall25



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(A) identify Specialty Areas of critical need1

for cybersecurity workforce across the Depart-2

ment; and3

(B) submit a progress report on the imple-4

mentation of this subsection to the appropriate5

congressional committees.6

(e) GOVERNMENT ACCOUNTABILITY OFFICE STATUS7

REPORTS.The Comptroller General of the United States8

shall9

(1) analyze and monitor the implementation of10

subsections (c) and (d); and11

(2) not later than 3 years after the date of the12

enactment of this Act, submit a report to the appro-13

priate congressional committees that describes the14

status of such implementation.15

Passed the Senate September 18, 2014.

Attest: NANCY ERICKSON,

Secretary.

Tester's Border Patrol Agent Pay Reform Act

Documents

Transcript of Tester's Border Patrol Agent Pay Reform Act